MISC 73708

March 8, 1976

Plymouth, ss.

Sullivan, J.

DECISION

The individual plaintiffs, James J. Lunny, III and Linda M.
Lunny, of Halifax, in the County of Plymouth, are the registered
owners named in and present holders of Transfer Certificate of
Title No. 50741 issued by the Plymouth County Registry District
of the Land Court (Exhibit No. 10) to them and covering Lot 2
on Land Court Subdivision Plan No. 436[E] (the "Plan"), which is
Exhibit No. 3. All references herein to the registration of
instruments are to said Registry District. Rockland Credit Union
is the holder of a mortgage covering the Lunnys' premises which
is registered as Document No. 148968 and noted on said Transfer
Certificate of Title No. 50741. It was joined with its consent
as a party plaintiff upon the motion of the defendants. The individual
defendants, Joseph W. Klaus, Jr. and Jean M. Klaus, also of
said Halifax (the "defendants") are the owners of Lot 1 on the Plan
which is described in Transfer Certificate of Title No. 47675
(Exhibit No. 8) in which Mr. and Mrs. Klaus are described as the
registered owners. The other defendant, [Note 1] is the holder of a mortgage
covering said Lot 1 which is registered as Document No. 137398
and noted on said Transfer Certificate of Title No. 47675. A copy
of the Plan is attached hereto as Exhibit A for the sake of
clarity.

The Plan shows a "WAY" twenty feet in width running westerly
from the easterly sideline of Monponsett Street across Lots 1 and
4, as shown thereon, to the easterly line of Lot 2 (the "WAY").
The Way is adjacent to the northerly boundary of Lots 1 and 4 and
its southerly line is indicated by dashed lines. The plaintiffs'
certificate of title refers to the Plan, but it does not specifically
set forth any appurtenant right to use the Way. The defendants'
certificate of title, on the contrary, contains the following
language:

"There is appurtenant to said lot a right of way over the
20' strip along the northerly side of Lot 4 to and from
Monponsett Street as shown on said plan #436E, as set
forth in a certain deed from Anthony Cimorelli to Joseph
W. Klaus, Jr. et ux, dated August 18, 1971, filed as document
#137397."

The certificate makes no specific reference, however, to rights in
that part of said strip located on Lot 1 to which said lot may be
subject.

The plaintiffs filed a complaint in this Court on October 4,
1974 for Declaratory Relief under G.L. c. 231A in which they alleged
that the Way is the only means of access by land to their premises,
that they have an easement for all purposes for which ways are used
over the Way shown on the plan, and that an actual controversy
exists. The relief requested included an injunction against interference
with the plaintiffs' use of the Way and damages from such
interference. The defendants' answer pleaded the statute of frauds,
denied that the Way was the sole access to the plaintiffs' premises
and that the plaintiffs had a right to use it and as a counterclaim
alleged continuing trespass by the plaintiffs and their invitees for
which damages were sought as well as relief from parking by the
plaintiffs on land of the defendants. The plaintiffs seasonably
filed an answer to the counterclaim.

When this case was reached for trial, it was agreed by the
parties to postpone the question of an award for damages until a
decision on the merits and to submit the matter for determination
by the Court upon a consideration of the following documentary
evidence, all of which are copies of the original instruments or
plans:

The present controversy arises from the failure of the draftsman
of the deed from the common grantor, Anthony Cimorelli, to James
Joseph Lunny, III (Exhibit No. 5) to set forth therein an appurtenant
right to use the Way. [Note 2] The Certificate of Title which thereupon
was issued to Mr. Lunny on February 3, 1971 described the property
by metes and bounds and concluded with a reference to the Plan.
It did not refer to the Way. An examination of the subdivision plan
to which reference is made in both Exhibits No. 5 and No. 6 makes it
apparent that access from Monponsett Street to Lot 2 must be over the
way shown on the plan. This way commences at the street line and continues
across Lot 4 and Lot 1 to the easterly line of Lot 2. [Note 3] It
is important to observe that the Way does not stop at the easterly
boundary of Lot 1 but continues across it to Lot 2. From this and
from the lack of any other access of record to Lot 2, I find that the
parties to Exhibit No. 5, upon which the rights of the plaintiffs [Note 4]
depend, intended that there be appurtenant to Lot 2 a right to use the Way. Is there anything inherent in the registration system which bars
recognition of this intention? It is true, as the Supreme Judicial
Court has recently stated, that registered land is "protected to a
greater extent than other land from unrecorded and unregistered liens,
prescriptive rights, encumbrances and other burdens". Peters v.
Archambault, 361 Mass. 91 , 93 (1972). The defendants rely heavily
on G. L. c. 185, Sec. 46 which provides that "every subsequent purchaser
of registered land taking a certificate of title for value
and in good faith, shall hold the same free from all encumbrances
except those noted in the certificate" and other exceptions not
here relevant. Section 53 of Chapter 185 also provides that no
easement by prescription may be acquired in registered land nor a
right of way by necessity be implied under a conveyance thereof.

Conversely, it is well settled that a plan referred to in a
deed becomes a part of the contract so far as may be necessary to
aid in the identification of the lots and to determine the rights
intended to be conveyed. The same principles of construction apply
to registered as to unregistered land. Goldstein v. Beal, 317 Mass. 750 , 755 (1945). Under the circumstances of this case I find that
the reference to the Plan in the certificate of title incorporated
the Plan and the Way shown thereon into the certificate and constituted
a grant of the right, as appurtenant to Lot 1, to use the Way
shown on the Plan. This reference also was constructive notice of
the plaintiffs' rights as to which the defendants were put on notice.
See Dubinsky v. Cama, 261 Mass. 47 (1927). In addition, the deed
to the defendants and the certificate of title issued to them also
incorporated the Plan therein by reference and indeed made specific
reference to the Way. It then was incumbent upon the defendants to
examine the Plan to see the extent of the way and to ascertain what
rights appurtenant to other lots there might be therein. The fact
that the disputed area crosses Lot 1 and is clearly labeled Way
is determinative of this issue.

The defendants have argued that if the Court should find the
plaintiffs to have a right of way over Lot 1, this right should be
limited to the traveled portion of the strip and not be construed,
as coexistent with the Way, as shown on the Plan. Since the certificate
of title must be read with the Plan, however, this argument
must fail. I find and rule that the plaintiffs' rights are in the
Way, as shown on the Plan, not in a strip of less width.

The plaintiffs claim that the right of way which is appurtenant
to Lot 2 should be construed as being for all purposes, a phrase
limited customarily is construed as including the right to install
utilities, whereas the defendants argue that it should be limited to
the right of passage. It is settled case law in Massachusetts that
a general right of way is limited to purposes of travel. See Crullen
v. Edison Elect. Illum. Co., 254 Mass. 93 , 94, 1924.5). Ampagoomian
v. Atamian, 323 Mass. 319 (1948). Ward v. McGlory, 358 Mass. 322 (1970).
This rule has now been changed by statute as to easements created
after its effective date. See St. 1975, c. 610. Whether the General
Court intended that the 1975 legislation be applied to easements
granted prior to its effective date and if so, whether this
constitutionally may be done need not be considered in the present
case in which the constitutional question has not been argued. It
seems clear from the designation "20' Right of Way" on Exhibit 2,
the language of the grant to the defendants and the apparent location
without the limits of the Way of the utilities serving the
properties of both the plaintiffs and the defendants that it was
the intention of the common grantor that the conveyance be limited
to a general right of way only, as that term has been interpreted
prior to the recent statutory change, and I so find. Such a right
of way does not include any right to park motor vehicles on any
part of Lot 1 including so much thereof as is located within the Way;
rather the plaintiffs' rights are limited solely to the right to pass
and repass on foot and in vehicles throughout the Way, so as shown on
the Plan. The plaintiffs are not to make any other use of the remainder
of Lot 1 and the defendants are not to interfere in any
manner with the plaintiffs' use of the Way, as delineated herein.

The defendants contend that if the plaintiffs have the right
to use the Way, they also have a duty to maintain and repair it.
It is clear that the defendants, as the servient owners, have no
duty to keep the Way in good condition. Archambault v. Williams, 359 Mass. 742 (1971). It has frequently been stated that the dominant
owner has the right to make reasonable repairs and improvements
which it has been said follows "from the general principle that
'when an easement or other property right is created, every right
necessary for its enjoyment is included by implication' (citations
omitted)". Guillet v. Livernois, 297 Mass. 337 , 340 (1937). This
right must be exercised, however, with due regard to the rights and
interests of others. The plaintiffs, for example, may not intentionally
damage the surface of the soil of the Way. While it is
well established that the plaintiffs have the right to make the
Way passable, the question as to their further duty to maintain the
Way, once their use of it has commenced, is not as free from doubt.
The correct rule would seem to be that this burden does fall on the
plaintiffs. See Prescott v. Williams, 46 Mass. 429 (5 Metc. 429), 435
(1843). Flanagan v. Welch, 220 Mass. 186 , 191 (1915). New York
Central R. R. v. Ayer, 242 Mass. 69 , 74-75 (1922). To the extent
that the plaintiffs and defendants each may have a similar right
over so much of the Way as is located in Lot 4, the burden of maintenance
and repair is to be shared equally by the parties to this
proceeding.

Judgment accordingly.

Exhibit A

FOOTNOTES

[Note 1] The corporate defendant was properly served with notice but filed neither an appearance nor an answer. References herein to the plaintiffs or defendants are to the individual parties rather than the corporate mortgagees, unless the context otherwise requires.

[Note 2] Rather, the deed described the granted premises as being Lot 2 on Land Court Subdivision Plan 436E "to which plan references may be had for a more particular description of Lot 2."

[Note 3] Apparently no controversy exists between the plaintiffs and the defendants herein and the owners of Lot 4 as to the respective rights of the parties in that part of the way which is located on Lot 4. Since the owners of said lot were not made parties to this proceeding, no determination is made herein as to rights in that part of the Way located on Lot 4.

[Note 4] Subsequently, Mr. Lunny conveyed Lot 2 to himself and his wife, as tenants by the entirety, from which their present outstanding certificate (Exhibit No. 10) was issued. However, the plaintiffs' rights in relation to their grantor Mr. Cimorelli and his successors in title, were established upon the registration of Exhibit No. 5.